The Problem with Jamaica’s Sexual Offences Act

As many of you are probably unaware (since there has been little media coverage), the Jamaican 2009 Sexual Offences Act is soon to be under review in Jamaica, as required under the 5-year revision rule stated within the act itself. 

This piece of legislation is riddled with problems that result in the failure to protect many Jamaican citizens from having any substantial recourse to victimization and in some instances actually belittles the impact of their victimization.  There are probably too many to spell out in this post, but here are some examples of the problems seen within the legislation:

Rape: A man commits the offence of rape if he has sexual intercourse with a woman­:

1.     (a) Without the woman’s consent; and

2.     (b) Knowing that the woman does not consent to sexual intercourse or recklessly not caring whether the woman consents or not.

This definition of rape does not include anal or oral penetration or penetration with an object other than a penis. For example, if a man penetrates a woman with a bottle, it is considered grievous sexual assault instead of rape. This legislation is contrary to academic research that indicates all forms of penetration to be equally as traumatic for victims, save and except for the problem of unwanted pregnancy (which is some cases, can occur without penetration). In addition, the minimum sentence for rape is 15 years versus 5 years for grievous sexual assault. So your offender can avoid going to jail for an extra ten years just because he didn’t use his penis.  

This law defines rape as a heterosexual act. It is not gender- neutral. If someone of the same sex rapes you there is no recourse for you under the Act. In failing to be gender-neutral, men are not protected from women who rape either. This idea goes against our cultural conception of what a man is, but the truth is that there are women who rape and physically abuse men (Source).

In this way, the laws that are meant to protect individuals actually minimize the impact of victimization of those whose experience does not conform to the more common patterns of sexual violence. In order to ensure that all persons are protected equally, other states have employed gender-neutral rape laws, which encompass several forms of penetration towards all persons regardless of gender or sexual orientation. For instance, China has long employed gender-neutral laws specifically to overcome issues of male rape. While it is true that females are the main victims of sexual violence and males are typically the perpetrators, this does not dismiss the fact that there are other forms of rape that go beyond the male-female pattern. By ignoring this fact, the legislation leaves both women and men at risk.

Marital Rape: 5.—(I) A husband commits the offence of rape against his wife if he has sexual intercourse with his wife in any of the circumstances specified in subsection (3)-

(a) without her consent; and

(b) knowing that she does not consent to sexual inter- course or recklessly not caring whether she consents or not.

(3) The circumstances referred to in subsection (1) are that-

(a) the spouses have separated and thereafter have lived separately and apart within the meaning of the Matrimonial Causes Act;

(b) there is in existence a separation agreement in writing between the spouses; –

(c) proceedings for the dissolution of the marriage or for a decree of nullity of marriage have been instituted

(d) there has been made or granted against the husband an order or injunction, as the case may be, for non-cohabitation, non-molestation or ouster from the matrimonial home for the personal protection of the wife;

(e) the husband knows himself to be suffering from a sexually transmitted infection.

In other words, your husband has the right to have/take (these words are interchangeable in this context) you no matter how you feel about it. This reinforces the archaic, sexist view of women as the property of men and promulgates the acceptance of normalization of violence against women. Arguably this is because Jamaica fails to accept non-westernised notions of family and does not wish to taint the ‘sacred and private’ nature of marriage. This point is highlighted by the neglect to consider the unique circumstances of women in common-law relationships (in 2013, it was reported that 86% of children were born out of wedlock. 35% of Caribbean households are headed by single women).

These are just a few of the issues that should be discussed under the review of the Sexual Offences Act this year. However, acknowledging them as issues also means acknowledging that some aspects of our culture are rooted in ideals that tolerate and encourage violence. By allowing these cultural notions of male sexual dominance and female sexual subservience to influence legislation, we are legitimizing justifications of sexual violence. It should no longer be socially acceptable for someone to force a female to perform oral sex isn’t because ‘it isn’t the same’ as forcing her to have intercourse. Qualitative studies provide anecdotes from young Jamaican boys who have no issue with physically assaulting women who refuse to have sex with them. Nor is it acceptable for women to think of themselves as property of her husband for the sole purpose of sexual gratification. More reports tell us that married women accept that their husband can beat them or rape them if they didn’t prepare dinner on time.

Before we think about how to punish someone, we must first identify what should be punished. While doing this could create some cultural dissonance, this is what is necessary to move our society forward and more importantly to prevent crime. Two years ago, I submitted a full-length commentary on the sexual offences act highlighting these issues to Parliament. At the time, parliament was tabling the legislation for the implementation of a Sex Registry.  I was told to wait until the 5-year review came up. I plan to resubmit this. Let’s see what happens.

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